1.1 It is recognised that in many cases for which damages for personal injuries are claimed the claimant's current medical situation, and/or the long term prognosis, may be improved by the appropriate medical treatment, including surgery, being given at the earliest practicable opportunity, rather than waiting until the claim has settled (referred to in this document as "medical treatment"). Other cases may require non-medical treatment, such as physiotherapy, counselling, occupational therapy, speech therapy and so forth ("rehabilitation")
1.2 It is also recognised that in cases of serious injury the claimant's quality of life can be immediately improved by the undertaking of some basis home adaptations and/or the provision of aid and equipment and/or appropriate medical treatment when these things are needed, rather than when the claim is finally settled ("early intervention").
1.3 It is further recognised that where these medical or other issues have been dealt with that there may be employment issues which can be addressed for the benefit of the claimant to enable him or her to keep the job that they have, to obtain alternative suitable employment with the same employer, or to re-train for new employment. Again if these needs are addressed at the proper time the claimant's quality of life and long term prospects may be greatly improved.
1.4 Solicitors acting for claimants understand that, taking all these matters into account, they can achieve more for the claimant, by making rehabilitation available, than just the payment of compensation. The insurance industry realises that great benefit may be had in considering making funds available for these purposes.
1.5 It is therefore desired to create a Code of Best Practice, which wil ensure that those acting for claimants and those responding to claims against the insurance industry, or acting for such persons, act in future to ensure possible improvements in the quality of life, and the present and long term physical and mental well-being of the claimant, are being addressed as issues equally as important as the payment of just, full and proper compensation.
2.1 It shall be the duty of every claimant's solicitor to consider, in consultation with the claimant and/or the claimant's family, whether it is likely or possible that early intervention, rehabilitation, or medical treatment would improve their present and/or long term physical or mental well being.
2.2 It shall be the duty of a claimant's solicitor to consider, with the claimant and/or the claimant's family, whether there is an immediate need for aids, adaptations or other matters which would seek to alleviate problems caused by disability, and thereupon communicate with the insurer as soon as practicable to see if this Code of Practice can be put into effect.
2.3 It shall not be the responsibility of the solicitor to decide on the need for treatment or rehabilitation or to arrange such matters without appropriate medical consultation. Such medical consultation must involve the claimant and/or the claimant's family, the claimant's primary care physician, and, where appropriate, any other medical practitioner currently treating the claimant.
2.4 Nothing in this Code of Practice shall in any way affect the obligations placed on a claimant's solicitor by the Pre Action Protocol annexed to the Civil Procedures Rules 1999. However, it will be appreciated that very early communications with the insurer will enable the matters dealt with here to be addressed more effectively.
3.1 t shall be the duty of the insurers to consider, in any appropriate case, whether it is likely that the claimant will benefit, in the immediate, medium or longer term, from further medical treatment, rehabilitation or early intervention.
3.2 If the insurer decides that a particular claim might be suitable for intervention, rehabilitation or medical treatment the insurer will communicate this to the claimant's solicitor as soon as practicable.
3.3 On receipt of such communication the claimant's solicitor will immediately discuss these issues with the claimant and/or the claimant's family pursuant to his duty as set out above and, where appropriate, will seek advice from the claimant's treating physicians/surgeons.
3.4 Nothing in this or any other Code of Practice shall in any way modify the obligations of the insurer under the Pre Action Protocols to investigate claims rapidly and in any event within three months (except where time is extended by the Claimant's solicitor) from the date of the formal claim letter. It is recognised that although the rehabilitation assessment can be done even where liability investigations are outstanding, it is essential that such investigations proceed with the appropriate speed.
4.1 Unless the need for such intervention or treatment has already been identified by medical reports obtained by either side and disclosed, the need for and extent of, such intervention, rehabilitation or treatment will be carried out by means of an independent assessment.
4.2 It must be recognised that the insurers will need to receive from the claimant's solicitor sufficient information for the insurer to make a proper decision about the need for intervention, rehabilitation or treatment. To this extent the claimant's solicitor must comply with the requirements of the Pre Action Protocol to provide the insurer will full and adequate details of the injuries sustained by the claimant, the nature and extent of any, or any likely, continuing disability and any suggestions that may already have been made concerning rehabilitation and/or early intervention. There is no requirement under the pre-action protocol, or this Code of Practice, for the claimant's solicitor to have obtained a full medical report. It is recognised that many cases will be identified for consideration under this Code of Practice before medical evidence has actually been commissioned.
4.3 "Independent assessment" in this context means that the assessment will be carried out by either:
a) The treating physicians/surgeons, or some of them
or
b) By an agency suitably qualified and/or experienced in such matters which is financially and managerially independent of the claimant's solicitors firm and the insurers dealing with the claim.
4.4 It is essential that the process of assessment and recommendation be carried out by those who have an appropriate qualification (to include physiotherapists, occupational therapists, psychologists, psychotherapists, and so forth). It would be inappropriate for these assessments to be done by someone who did not have a medical or other appropriate qualification. Those doing the assessments should not only have such a qualification but should have experience in treating this type of disability from which the individual claimant suffers.
5.1 Where possible the agency to be instructed to provide the assessment should be agreed between the claimant's solicitor and the insurer. The instruction letter will be sent by the claimant's solicitor to the medical agency, a copy of the instruction letter being sent to the insurer.
5.2 The medical agency will be asked to interview the claimant at home (or where the claimant is still in hospital, in hospital, with a subsequent visit to the claimant's home) and will be asked to produce a report which covers the following headings:
1 The injuries sustained by the claimant
2 His/her present medical condition
3 The claimant's domestic circumstances, where relevant
4 The injuries/disability in respect of which early intervention or early rehabilitation is suggested
5 The type of intervention or treatment envisaged
6 The likely cost
7 The likely short/medium term benefit to the claimant
5.3 The report will not deal with diagnostic criteria, causation issues or long term care requirement.
6.1 The reporting agency will, on completion of the report, send a copy of the report both to the instructing solicitor and to the insurer simultaneously. Both parties will have the right to raise queries on the report, disclosing such correspondence to the other party.
6.2 It is recognised that for the independent report to be of benefit to the parties, it should be prepared and used wholly outside the litigation process. Neither side can therefore rely on its contents in any subsequent litigation. With that strict proviso, to be confirmed in writing by the individual solicitor and insurer if required, the report shall be disclosed to both parties.
6.3 The report, any correspondence relating to it, and any notes created by the assessing agency, will be covered by legal privilege and will not under any circumstances be disclosed in any legal proceedings. Any notes or documents created in connection with the assessment process will not be disclosed in any litigation, and any person involved in the preparation of the report or involved in the assessment process shall not be a compellable witness at court.
6.4 The insurers will pay for the report within 28 days of receipt.
6.5 The need for any further or subsequent assessment shall be agreed between the claimant's solicitor and the insurer. The provisions of this Code of Practice shall apply to such assessments.
7.1 When the assessment report is disclosed to the insurer, the insurer will be under a duty to consider the recommendations made and the extent to which funds will be made available to bring about implementation of all, or some of, the recommendations. The insurer will not be required to pay for such intervention or treatment as shall be unreasonable in nature, content or cost. The claimant will be under no obligation to undergo intervention, medical investigation or treatment which is unreasonable in all the circumstances of the case.
7.2 Any funds made available shall be treated as an interim payment on account of damages. However if the funds are provided to enable specific intervention, rehabilitation, or treatment to occur, the insurers warrant that they will not, in any legal proceedings connected with the claim, dispute the reasonableness of that treatment nor the agreed cost, provided of course that the claimant has had the recommended treatment.